IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) aa PRESEN’ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MUNIB AKHTAR MR. JUSTICE YAHYA AFRIDI fark) CIVIL PETITION NO. 3632,0F 2018 (On appeal trom the judgment/order dated 20.7.2018 of the High Court of Sindh, Karachi paseed i C.D, No 1658/2038), Roshan Ali Buriro sss Potitioner(s) Versus Syed Murad Ali Shah and others v+ Respondent(s} Wor the petitioner(s) : = Mr. Hamid Khan, Sr, ASC Mr. M. Wagar Rana, ASC Respondent(s} Not represented. Date of hearing 23.01.2019 ORDER UMAR ATA BANDIAL, J, A Division Bench of the learned High Court has by its impugned judgment dated 20.07.2018 dismissed the constitution petition filed by the petitioner seeking a writ of quo warranto on the ground that no disqualification of the respondent No.1 (“respondent”) under Article 63(1)(c) and 62(1)() respectively of the Constitution of islamic Republic of Pakistan, 1973 (“Constitution”) is made out on record for holding dual nationality 2. The petitioner is a political opponent of the respondent. He had previously filed objections to the candidature of the respondent in the General Elections of 2013. The respondent was disqualified by the Returning Officer on 06.4.2013 from his dual nationality as a Canadian citizen. He was thereby disqualified contesting that clection on the ground of concealing under Article 62(1)(d) and Article 62(1)(0 of the Constitution, The appeal filed by the respondent was dismissed by the Election i |‘sur no. 3032 OF 2018 a Tribunal on 16.4.2013 but solely on account of his disqualification under Article 63(1)(c) of the Constitution. A full Bench of the learned High Court set aside the respondent's disqualification on 18.4.2013. However, on a pet sestored the respondent's disqualification on 02.5.2013 in terms of the judgment of the learned Election Tribunal dated 16.04.2013 ion filed by the petitioner, this Court and the order dated 06.04.2013 by the Returning Officer. 3 Some three months later, on 18.7.2013,” the respondent was issued a certificate of renunciation of citizenship by the Canadian Government. Accordingly, he filed his nomination paper for the General Election cf 2018 against which the petitioner again filed an objection. This objection was rejected by the Returning Officer on 14.6.2018. Although the petitioner had a right of appeal against that order under Section 68 of the Election Act, 2017, he did not pursue the same and instead filed a writ petition before the learned High Court which has been dismissed by the impugned judgment on 20.7.2018, 4 We asked learned counsel as to why the petitioner had abandoned his statutory remedy of appeal against the acceptance of the respondent's nomination paper and instead petitioned the learned High Court, However, learned counsel did not give any answer to that query. It is apparent that the petitioner nurtures a motive for disqualifying the respondent who is a political opponent whom the petitioner has repeatedly sought to climinatc him from the clectoral contest. 5. Learned counsel has not disputed the political rivalry between the parties but submits that the judgment of this Court reported as Sher Alam Khan vs. Abdul Munim and others (PLD 2018 SC 449), holds that upon receipt of information from any source, a Constitutional Court may at any stage call upon an clected legislator to substantiate his qualification to occupy his clected office, Since the order of the Returning Officer dated 06,4.2019 and of the learned Appellate Tribunal dated 164.2013 had been upheld by this Court in its judgment dated 02.5.2013,therefore, the order of the Returning Officer disqualifying the respondent, inter alia, under Article 62(1)() of the Constitution could be enforced for the imposition of a permancnt disqualification through a writ of quo warranto. 6. We have heard the learned counsel for the petitioner and have gone through the material on record. 7. We notice that the order of the Returning Officer dated 06.04.2012 is summary in nature. No evidence was recorded in the said proceedings not does the order give any reasons for disqualifying the respondent under Article 62(1)() of the Constitution. On the other hand, the learned Election Tribunal made a declaration against the respondent only under Article 63(1)(¢) and none under Article 62 of the Constitution. In terms of the law laid down by this Court in its judgment reported as Maharunnisa vs. Ghulam Sughran (PLD 2016 SC 358), the order dated 06.04.2013 by the Returning Officer merged into the order of the leamed Election ‘Tribunal dated 16.04.2013. The disqualification imposed on the respondent by the Returning Officer under Article 62(1)(0) of the Constitution therefore did not survive, 8. Turning now to the petitioner’s switchover of his proceedings from remedies under the Election Act, 2017 to a Constitutional Petition before the learned High Court. That is a serious defect but may arguably be justified for seeking a decree by a Court of law that mects the requirement of Article 62(1)/f) of the Constitution. Howover, from the background that has already been recounted, we consider that the writ petition Gled by the petitioner was actuated by personal political rivalry and not by public interest. Accordingly it lacked the petitioner's bona fides. In this regard, Kamal Hussain us. Sirajul Islam (PLD 1969 SC 42) has held: “... any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by ain person who is allegedly holding it without lawful authority. .., But the grant of relief in writ jurisdiction is a matter of discretion, wherein it is quite legitimate on the part of the High Court to test the bona fides of the relator to soc if be has come with clean hands. A writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinair approach.” In the light of the said law, the petition under Article 199 of the Constitution was not maintainable before the Isarned High Court. 9 Be that as it may, in Samé Ullah 5 and others vs. Abdul Karim Nousherwani and others (PLD 2018 SC 405) we have held that that the disqualification of an election candidate or a holder of elected office under Article 62(1)(f) of the Constitution comes into existence when he is declared by @ Court of law to leck any of the qualities mentioned in clause (9 of Article 62(1) of the Constitution. In the present case, the only declaration against the respondent under Article 62(1)/f) of the Constitution was given in summary proceedings by the Returning Officer on 06.04.2013. As already noted above, no evidence was recorded by the Returning Officer to sustain his finding nor he recorded reasons for invoking disqualification under Article 62(1)(9) of the Constitution. He is not a Court of lew but @ statutory forum of limited jurisdiction. Therefore, the condition that only 2 Court of law can issue a declaration of disqualification under Article 62(1)(f) of the Constitution is not met in the present case. Moreover, the learned Hlection ‘Tribunal has not declared the respondent, directly or indirectly, to lack any of the qualities mentioned in Article 62(1)(f) of the Constitution. Although the judgment of this Court dated 02.5.2013 resurrected the order by the Returning Officer, we do not consider that the said order passes the test of effectiveness laid down in Sami Ullah Balech’s case (‘bid) for declaring a disqualification under Article 62(1)(() of the Constitution. This Court has held there that: “92. Secondly, on the other hand, a candidate for election whe has commiticd misconduct fallingcx.mo, 3592 97 2018 5 within the terms of Article 62(1)() of the Constitution, in particular, _amisrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary“ duty, conflict ‘of interest, deception, dishonest misappropriation, ctc, as declared by a Court of civil jurisdiction has on the Islamic and also ‘universal criteria of honesty, integrity and probity, vendered himself unfit to bold public office. ... [t is in such circumstances that a person declared to be dishonest or in breach of his trust or fiduciary duty ‘or being non-rightcous or profligate must sufier the burden of that finding of incapacity or as long as the Court decree remains in force. ...” 10. No finding in terms of the wrongs identified above in the quoted text is recorded in the order dated 06.04.2018 by the Returning Officer. As such, the said order is ineffective to impose a dioqualification under Article G2(1)() cf the Constitution Accordingly, the respondent does not suffer from a lifetime bar under Article 62(1)(f) of the Constitution as contended by the learned counsel for the petitioner. Therefore, the respondent was cligible to contest the General Election of 2018. 11 In the circumstances, we do not find any merit in this petition which is dismissed and leave to appeal is refused. ( a 1d baw oy eee A Nana fy whe 7 7 s rsh Hussain o NOT APPROVED FOR REPORTING.ion YAHYA AFRIDI, J. I have had the privilege of reading the . judgment of my learned brother in advance. With utmost respect to my { esteemed colleague, I cannot bring myself to agree with the reasoning I rendered therein in maintaining the impugned decision of the Sindh High : Court, Karachi. 2. It all started when the nomination papers of Syed Murad Ali Shah (‘the private respondent”) for contesting the election to the Sindh Provincial Assembly from PS-73 Jamshoro were rejected by the Returning Officer vide his order dated 06.04.2013, in terms that: “In view of above dictums of Honourable Supreme Court of Pakistan, I am of the considered view that Article 62 ite clause (d) & (f] of Conctitution of Islamic Republic of Pakistan ere not satisfied by Syed Murad Ali Shak and thereby he is not found qualified to Mle nomination form at preseat, for General Election 2013, therefore, the form is rejected.” 3. Aggrioved of the above-stated order, the private respondent challenged the same before the Sindh Election Tribunal, Karachi (“Tribunal”), but it bore no positive reprieve to him, and the same was rejected vide order dated 16.04.2013, in terms that: | "That as noted above, the admitted position is that the certificaie required in terms of section 9(3) of the Cenadian Act is yet to be issued on the Appellant's ‘application of rerunciation of citizenship. It follows that the Appellant has not ceased to be a Canadian citizen within the meaning, and for purposes, of Article 63()(¢). a ‘The bar contained therein continues to apply to him i] and he is therefore disqualified from being elected as a member of the Sindh Assembly, His nomination papers could not have been eccepted and therefore no interference with the order of rejection is called for.”4 Still aggrieved, the private respondent impugned the above decision of the Tribunal in the Constitutional jurisdiction of the Sindh High Court, which was accepted by a full bench vide order dated 20.07.2018, in terms that: ‘We would, therefore, allow the petition and set aside the impugned order ‘it hardly needs any mentioned that the Petitioner’s nomination papers are liable to be accepted, however, at the insistence of the learned counsel for the Petitioner we may observe 80. The petition along with the pending application stands disposed of in the foregoing terms.” 5. ‘The above decision was challenged by the present petitioner before this Court, which was accepted vide order dated 02.05.2013, in terms that: “Thus, for the foregoing rcasons, this petition Is converted into an appeal and ie allowed. The impugned Order dated 18.04.2013, passed by the learmed High Court under Article 199 of the Constitution is se: aside, Consequently, the orders of the Returning Officer dated 06.04.2013 and of the Election Appellate ‘Tribunal dated 13.04.2013, are restored. The petitioner is also held entitled for the cost througaout.” (emphasis provided) 6 Before I proceed further, it would be important to note that this Court in the above order, inter alia, revived two orders. The first one being the order passed by the Retuming Officer dated 06.04.2013, disqualifying the private respondent under clauses (d) and (f) of sub- article (1) of Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 (“the Constitution”); while the second being the order of the Tribunal dated 13.04.2013, disqualifying him under clause (c) of sub- article (1) of Article 62 of the Constitution. a a% Now to the judgment rendered by my learned brother. The principle of merger has been applied in declaring that the order of the Returning Officer dated 06.04.2018 merged into the order of the learned Election Tribunal dated 16.04.2013, and thus, it was held that the diequalification imposed on the private respondent by the Returning Officer under Article 62 (1) (4) and (fof the Constitution, therefore, did not survive, With profound respect to my learned brother, it appears that the decision of this Court dated 02.05.2013, wherein the disqualification of the private respondent under clauses (d) and (f) of sub-article (1) of Article 62 of the Constitution declared by the Returning Officer was expressly revived, escaped his kind attention. I would have most certainly agreed with the reasoning of my learned brother hac this Court not expressly revived the order of the Returning Officer. In view of the clear revival of the order of the Returning Officer, the cficct of its declaration cannot be diminished. Thus, it can be argued that the declaration of disqualification of the private respondent for not being ameen under clauses (d) and (f) of sub-article (1) of Article 62 of the Constitution was, in effect, made by this Court, and not the Returning Officer alone. This being so, the disqualification of the private respondent, having been revived by this Court vide order dated 02.05.2013, appears to have fulfilled the test of effectiveness of disqualification laid down in Samiullah Baloch's case {PLD 2018 SC 405), and thus, the same could be argued to be permanent. 8. T am in complete consonance with my learned brother regarding the general principles governing the maintainability of a constitutional petition in the face of an alternative remedy available to the petitioner under Election laws, and where his bona fide was also questionable. However, an excsption to the above principles has been _£carved for cases of public representatives by this Court in Sher Alam Khan's case (PLD 2018 Sc 449), which has also been followed in Raja Shoukat Asiz Bhatti's case (FLD 2018 SC 578), wherein a duty was cast upon the Constitutional Courts to be very vigilant in cases of disqualification of public representatives. The Court observed that: “Consequently, where a disqualified or unqualified person siips through the cracks sneaks into the Majlis-e-Shoora or the Provincial Assemblies, his, i presence in the said House can always be challenged through exercise of the Constitutional jurisdiction of this Court under Article 184(3) of the Constitution and before the learned High Court under Article 199 of the Constitution by way of a Writ in the nature of quo warranto. Even where a matter comes before this Court | regarding the qualification or disqualification of a 1 Member of the Majlis-e-Shoora o: the Provincial i Assemblies otherwise by way of proceedings cther than | uunder Article 184(8) of the Constitution, this Court not only has the jurisdiction to convert euch proceedings to | proceedings under Articie 184/3| of the Constitution but, is bound to do so, as to penmit an unqualified or . | ioqualified peroon to continue to defile and desccrate the Majiis-e-Shocra or the Provincial Assemblies and i masqulate as 2 chosen representative of the peorle } would amount to frustrating the other way, it would perhaps constitute a faiture to protect and preserve the Constitition ‘Thus, we find ourselves tumble to decline the prayer of the Petitioner to examine the merits of the i case so as to determine on the basis of the material available on record whether Respondent No. 1 was qualified or disqualified from being a Membor of the i Provincial Assembly, Khyber Pakhtunkkhwa. Any refusal on our part to avoid or evade such an exercise would” constitute a departure from the law as laid down by this Court and perhaps weuld even amount to a betrayal of the Constitution. Hence, we convert these proceedings into Sue Motu proceedings under Article 184(3) of the Constitution.” 9% Without rendering any comments on the principle laid down | i in the above case, it can be observed that the isitent of the said principle, as it presently stands, is clear: matter of a disqualified or unqualified public representative has to be addressed and checked, even if it requires the invoking of Sue Motu jurisdiction of this Court under Article 184 (3):of the Constitution. In view of the ratio in Sher Alam Khan's case (supra, aS followed in Raja Shoukat Aziz Bhatti’s case (supra), not deciding the disqualification of the private respondent for not being ameon, under clauses (d} and {f] of sub-article (1) of Article 62 of the Constitution, on the touchstone of maintainability of the petitioner's constitutional petition before the Sindh High Court ould not be legally correct. 10, 1 am of the view that serious constitutional issues require to be addressed, inter alia: ul ml. Whether the disqualification of the private respondent under clauses (d) and (f) of sub-article (1) of Article 62 of the Constitution was passed by a court of law or otherwise. Whether the disqualification of the private respondent, if any, would be permanent or otherwise in terms of the test laid down in Saraiullak Balock’s oase (eupra). Whether the lack of bona fide on the part of the petitioner in invoking the Constitutional jurisdiction of High Court under Article 199 of the Constitution and having an alternative remedy under the election laws rendered the petition maintainable or otherwise. Whether the disqualification of the private respondent could be ignored by this Court, keeping in view the dicta laid down in Sher Alam Khan's case (supra) and Raja Shoukat Asie Bhatti’s case (sapra). Accordingly, for the reasons stated hereinabove, leave of this Court be granted to consider and address the issues stated above. Islamabad, the ee 23% of January 2019 way aN &cesexzp018 n ORDER OF THE BENCH i By majority of two to one (Yayina Afridi, J. dissenting), | this petition is dismissed and leave to appeal is refused. Islamabad, nda APPROVED FOR REPORTING. 4